Evolving Law Results in Unequal Pay to the Exonerated

Entre Nax Karage spent more than six years in prison for the rape and murder of his girlfriend. But in 2005, DNA evidence proved he was innocent, and he was released. The state paid him about $158,000 in compensation.

DNA evidence also helped exonerate Ricardo Rachell. He was freed in 2008 after spending six years in prison on a sexual-assault conviction. Texas paid him about $493,000.

“It’s not right, and it’s unjust,” Karage said. “We all did the same time and went through the same situation.”

Since 1992, Texas has paid more than $42 million to compensate 74 men and women who together spent more than 700 years behind bars for crimes they did not commit.

How much Texas will pay exonerated prisoners depends largely on when they were released and applied for compensation. Changes in the law over the last decade have created vastly different payouts, according to reimbursement data that The Texas Tribune obtained under Texas public information laws, leaving prisoners who were released earlier feeling doubly wronged.

After spending much of his youth in Cambodia, Karage and his family escaped to the United States. In 1997, a judge convicted Karage, who had no previous criminal record, of raping, beating and strangling Nary Na, his 14-year-old girlfriend. But because of the timing of his release, Karage is receiving much less compensation for his time behind bars than some other prisoners exonerated of their crimes.

From 1985 until 2001, only two Texas prisoners sued the state for compensation after they were exonerated, and the state paid them a total of $50,970. But with the advent of DNA testing, the number of wrongful convictions uncovered in Texas began to increase significantly.

Until 2001, compensation was available only to those who had initially pleaded not guilty and who had received a full pardon from the governor. An exonerated prisoner could get up to $25,000 for pain and suffering, and damages were limited to $250,000.

In 2001, lawmakers increased the compensation to $25,000 for each year served, or $500,000 if the inmate served more than 20 years. They also eliminated the provision that required the person to have pleaded not guilty.

Then, in 2007, lawmakers doubled the compensation to $50,000 per year of imprisonment and $100,000 per year on death row, and they eliminated the cap.

News reports about Wiley Fountain surfaced in 2008. Five years after he was cleared of the aggravated sexual assault charge that had put him behind bars for 15 years, Fountain was found homeless and sleeping behind a Dallas liquor store. He had quickly burned through the lump sum of about $388,000 he had been awarded, spending it on lawyers’ fees, taxes and what he reportedly called “living large.”

So in 2009, lawmakers adjusted the compensation law again. Now, Texas prisoners who are exonerated are eligible for up to $80,000 for each year of wrongful confinement. They also receive a monthly annuity that is worth another $80,000 for each year they were in prison. They can request state health insurance and free tuition at public universities. It is the most generous compensation law in the nation.

The 2009 change also made those who had received compensation under the old law eligible for some of the new provisions, including the annuity, the insurance and the education benefits. But the law did not retroactively affect the lump-sum payouts that some former inmates had already received. So inmates who were paid at a rate of $25,000 per year, like Karage, are not eligible to be compensated at the new lump-sum rate of $80,000 per year.

Texas has done a “better job than really any other state in the union,” said Kevin Glasheen, a Lubbock personal injury lawyer who helped design the 2009 law. “It’s not perfect, and it could be better.”

At least one former prisoner has filed a lawsuit over the inequity. Larry Charles Fuller has asked the Texas Supreme Court to force the Texas comptroller to grant his application for more money. Fuller was exonerated in 2007 after spending nearly 20 years in prison for a rape he did not commit. He received $1 million — $50,000 for each year in prison. When the 2009 law was adopted, he began receiving an annuity of $11,500 per month.

Now, he argues he should also be eligible to collect a larger lump-sum payment. Fuller submitted an application to Comptroller Susan Combs in January 2009, seeking about $600,000 — the difference between the lump sum he was awarded in 2007 and what he would have been eligible for under the 2009 law. Combs denied the application because Fuller had already applied for compensation and received it.

Fuller’s lawyers argue that he is entitled to the extra money because he requested it before the three-year deadline to apply for compensation passed. In a brief to the court, they say that nothing in the law prevents a former inmate from filing successive requests. “The comptroller lacks authority to further constrain exonerees’ ability to receive compensation by forbidding more than one application,” the lawyers wrote.

Glasheen said, “I don’t have that much confidence in those claims,” although he added, “My sympathy is with the guys, and I’d sure like to see them succeed.” But unless the law is changed, he said, exonerated inmates who were paid under the old law, like Fuller and Karage, will be able to receive the annuity, but it is unlikely that they will be able to argue successfully for additional compensation in their lump-sum payment.

State Sen. Rodney Ellis, D-Houston, who has led legislative efforts to increase compensation for those wrongfully imprisoned, said no amount of money could make up for the injustices that the former inmates had endured.

“I certainly wish those who received less under the old law could receive at least as much as those who have been compensated most recently,” Ellis said. “Unfortunately, there has been consistent resistance in the Legislature to make the lump sum-payment aspect of these reforms retroactive.”

Karage said he hoped lawmakers would change their minds. Now 42, he left prison with arthritis in his legs and problems with his right eye, which was badly injured in a fight. He has worked intermittently in security jobs but has had a tough time finding steady work. He lives with his wife and four children in a rented town house in the Dallas area. His wife, he said, was recently laid off.

Karage applied for compensation just months before legislators increased the payment to $50,000 a year from $25,000. The $158,000 he got was gone quickly because of lawyers’ fees and other expenses. With the passage of the 2009 law, he started receiving a monthly annuity of about $2,400. Now, he said, that is all that keeps his family housed and fed.

“I’m not blessed like the other exonerees,” he said. “It’s not fair. It’s not justice.”

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